Super Bowl-winning quarterback Drew Brees recently discussed his long-standing correct shoulder problems. In 2005, he dislocated his shoulder while playing for the San Diego Chargers. In 2023, he can no longer throw with his right hand. Brees was told that the dislocated shoulder placed him on the “fast track to a degenerative shoulder and all kinds of arthritic changes. I don’t throw with my right arm anymore. If I could, I would still be playing.'” Besides tossing a football, he reported problems using his arm above his shoulder.

What Is Impairment and Why Does It Matter?

In California, Permanent Impairment is assigned to work injuries. This impairment is used to determine an Injured Worker’s Permanent Disability Percentage. The AMA Guides for Rating Permanent Impairment, 5th Edition, is employed to do so. Per the guides, impairment is “a loss, loss of use, or derangement of any body part, organ system, or organ function.” Per the Guides, “[a]n impairment can be manifested objectively, for example, by a fracture, and subjectively, through fatigue and pain. Although the Guides emphasize objective assessment, subjective symptoms are included within the diagnostic criteria. According to the Guides, determining whether an injury or illness results in a permanent impairment requires a medical assessment performed by a physician. An impairment may lead to functional limitations or the inability to perform activities of daily living.”

In Mr. Brees’ workers’ compensation case, throwing a football would not be considered an impairment. Tossing a ball is not an Activity of Daily Living. (ADL)   ADLs are as follows: “Self-care, urinating, defecating, brushing teeth, personal hygiene combing hair, bathing, dressing oneself, eating Communication writing, typing, seeing, hearing, speaking Physical activity standing, sitting, reclining, walking, climbing stairs Sensory function hearing, seeing, tactile feeling, tasting, smelling Nonspecialized grasping, lifting, tactile hand activities discrimination Travel riding, driving, flying Sexual function orgasm, ejaculation, lubrication, erection Sleep restful, nocturnal sleep pattern.”

While Mr. Brees’s main complaint does not fall within the AMA guidelines as an activity of daily living, he did describe an impairment of the inability to use the arm above the shoulder. Therefore, his ADL impairment would be related to putting on clothes or doing laundry. His impairment would also be due to his lack of range of motion and other conditions.

Workers’ Compensation law also allows doctors to describe the impairment most accurately should there be some difficulty in doing so. Per case law,  a physician can deviate from the strict rating by doing the following: “(1) provide a strict rating per the AMA Guides; (2) explain why the strict rating does not accurately reflect the employee’s disability; (3) provide an alternative rating within the four corners of the AMA Guides; and (4) explain why the alternative rating most accurately reflects the employee’s level of disability.”

What If I Need Legal Advice?

If you want a free consultation regarding workers’ compensation, please get in touch with the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 30 years. Contact us today for more information.

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